[This article was first published in May 2014 in the South Asia Citizens Web (SACW). It is being reposted today, as Tarun Tejpal’s bail application is scheduled to come up for hearing before the Supreme Court in September 2026.]
Benjamin Cardozo and Lord Camdon have brought to the
fore as to what constitutes judicial discretion used by judges in the context
of bail:
“The
judge even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight – errant roaming at will in pursuit of his own
ideal of beauty or of goodness. He is to draw his inspiration from consecrated
principles.” - Benjamin Cardozo[1]
and
“..the
discretion of a judge is the law of tyrants: it is always unknown. It is
different in different men; it is casual, and depends upon constitution, temper
and passion. In the best, it is often times caprice; in the worst, it is every
vice, folly and passion to which human nature is liable …”- Lord Camdon[2]
Js. V.R. Krishna Iyer and Js. D.A. Desai through their
judgement dated 31.01.1978 in Babu Singh
and Others V. The State of U.P.[3]
gave a scientific orientation to the crucial issue of bail. These judges
accepted that hitherto the ferocity of the crime had eclipsed the real purposes
of bail or jail; that other sensitive and sensible circumstances were ignored,
and that the fate of applicants for bail in the higher judiciary had largely
hinged on the hunch of the bench as on expression of judicial discretion.
The personal liberty of an accused or convict is
fundamental as enunciated in Article 21 of the Constitution of India: No person shall be deprived of his life or
personal liberty except according to procedure established by law, it can be
denied only by procedure “established by law”. The last four words of
Article 21 are the life-force of that vital human right.
The fundamental and constitutional right of bail is
available to those accused, charged or convicted. The object to keep a person in
judicial custody pending trial or disposal of an appeal is primarily to ensure
the attendance of the person at trial. That’s the crux. Lord Russel, C.J. ruled:
"I observe that in this case bail was
refused for the prisoner. It cannot be too strongly impressed on the magistracy
of the country that bail is not to be withheld as a punishment, but that the
requirements as to bail are merely to secure the attendance of the prisoner at
trial."[4]
This theme was developed by Lord Russel of Killowen C.
J., when he charged the grand jury at Salisbury Assizes, 1899:
"... it was the duty of magistrates to
admit accused persons to bail, wherever practicable, unless there were strong
grounds for supposing that such persons would not appear to take their trial.”[5]
In Archbold it is stated that:
"The proper test of whether bail
should be granted or refused is whether it is probable that the defendant will
appear to take his trial ...”
In all fairness Tejpal surrendered within the stipulated
time on 30 November, 2013 after rejection of his anticipatory bail application
and has been in custody since. There is not even an iota of doubt that his
conduct while in custody has been exemplary. He is not digging a tunnel for
jail break! A family man, he availed a few hours of granted leave to attend to
his aged mother suffering from cancer. With mental faculties still about intact
– in spite of the initial press trial and even ‘conviction’ by the corporate
media at the behest of the powers that be – he is busy seeking information
under the Right to Information Act about the total quantum of money spent on
the exercise of investigating and prosecuting him. Even in custody he is abiding
by the Article 51 A of the Constitution of India which states:
“It shall be the duty of every citizen of
India to develop the scientific temper, humanism and the spirit of inquiry and
reform.”
Tejpal is hardly the sort of person who if given bail
would not make himself available for trial. He is unlikely to take the first
flight to Timbuktu upon release on bail and disappear. It is in his own
interest to get over with the trial fast. But he is a victim of the slow motion
of the justice system – precisely the right candidate for bail.
Js. Krishna Iyer simplifies the guiding principle for
those emotionally charged and are won’t to say goodbye to logic and common sense
when bail is being prayed:
“The principal rule to guide release on
bail should be to secure the presence of the applicant who seeks to be liberated,
to take judgement and serve sentence in the event of the court punishing him
with imprisonment.”
Tejpal does not have a bad record – particularly a
record which suggests that he is likely to commit serious offences while on
bail. He is not a habitual offender. He qualifies for bail on this count too.
Js. Krishna Iyer
makes an impassioned plea for public justice:
“It makes sense to assume that a man on bail has a
better chance to prepare or present his case than one remanded in custody. And
if public justice is to be promoted, mechanical detention should be demoted.”
Tejpal has prayed for bail so that he can prepare a
better defence of himself. It is a fair enough ground for his bail.
Justices Krishna Iyer
and Desai elaborate:
“The
considerable public expense in keeping in custody where no danger of
disappearance or disturbance can arise, is not a negligible consideration.
Equally important is the deplorable condition, verging on the inhuman, of our
sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration
makes refusal of bail unreasonable and a policy favouring release justly
sensible.”
“Our
justice system, even in grave cases, suffers from slow motion syndrome which is
lethal to ‘fair trial’., whatever the ultimate decision. Speedy justice is a
component of social justice since the community, as a whole, is concerned in … the
innocent being absolved from the inordinate ordeal of criminal proceedings.”
Even though the
charge sheet, running into approximately 2846 pages against Tejpal was filed on
17 February, 2014, the charges are yet to be framed and the trial would take a
long time as there are 159 witnesses. Tarun Tejpal’s bail plea was earlier rejected
by the Goa Bench of the Bombay High Court on 14 March, 2014 on the ground that
in view of the recent amendments to the criminal laws the applicant cannot
claim to be released on bail on the ground that the trial will take a long
time, since as per the new law the trial has to be completed within a period of
two months from the date of filing of the charge sheet. This period of two months
elapsed on 17 April, 2014. Tejpal is still in jail and the trial is yet to
start!
Why should Tejpal and those similarly placed be denied
bail when the trial is not complete within the stipulated period? If the legal
system cannot assure that the time period would be adhered to why deny bail and
liberty to the accused. Tejpal’s trial has not yet started and he has been
incarcerated for about five months.
Forget Tejpal for a moment. He is just an accused. Juxtapose
it with what even those already convicted by a court stand to avail if they go
in appeal. This weighty issue has been dealt at length by Js. Bhagwati in his
judgement dated 02.09.1977 in Kashmira
Singh V. The State of Punjab[6].
The rationale of this practice – not to release on bail a person who has been
sentenced to life imprisonment – could have
no application where the Court is not in a position to dispose of the appeal
for five or six years.
Js. Bhagwati makes it crystal clear that:
“It would indeed be a travesty of justice
to keep a person in jail for a period of five or six years for an offence which
is ultimately found not to have been committed by him.”
Js. Bhagwati then proceeds on to raise five
important questions:
1.
Can
the Court ever compensate him for his incarceration which is found to be
unjustified?
2.
What
confidence would such administration of justice, inspire in the mind of the
public ?
3. Would a judge not be overwhelmed with a
feeling of contribution while
acquitting such a person after hearing the appeal?
4. Would
it not be an affront to his (judge’s) sense of justice?
5. Of what avail would the acquittal be to a
person who has already served out his
term of imprisonment or at any rate a major part of it?
Remember that Js.
Bhagwati was dealing with the bail plea of a person convicted of murder and
sentenced to life imprisonment by the High Court who had come in appeal to
Supreme Court. Yet he was granted bail till the disposal of the appeal which
could have taken a few years. Remember again that Tejpal’s case is under trial.
Far from being convicted even the trial is getting inordinately delayed. His
bail application should justifiably be allowed.
[Shobha Aggarwal
is an advocate and Jt. Secretary, Public Interest Litigation Watch Group.]
[1] The Nature of Judicial Process – Yale University Press (1921)
[2] (I Bovu. Law
Dict., ‘Rawles’ III Revision p. 685- quoted in Judicial Discretion – National
College of the State Judiciary, Reno, Nevada p.14).
[3] All citations in
this article are from this Supreme Court’s judgement reported at 1978 AIR 527;
1978 SCR (2) 777; 1978 SCC (1) 579
[4] R.v. Rose 1898-18Cox CC. 717: 67 LJOB 289-
quoted in ’The granting of Bail’, Mod. Law Rev. Vol. 81, Jan 1968 p. 40, 48
[5] (1899) 63 J. P.
193, Mod. Law Rev. p. 49
[6] 1977 AIR 2147
